Urging FWS to Create a Robust Permitting and Enforcement Scheme to Protect Migratory Birds and Eagles used in Exhibition

On July 3, 2023, the Animal Legal Defense Fund submitted comments to the U.S. Fish and Wildlife Service (FWS) urging the agency to implement welfare standards and exhibition-specific permitting requirements for migratory birds and eagles. The Animal Legal Defense Fund argued that these standards and requirements should be established without allowing a regulatory authorization or alternative permitting scheme for entities that will be required to obtain a license from the U.S. Department of Agriculture (USDA) under the Animal Welfare Act for exhibition.

Unlike the Animal Welfare Act, the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act mandate that FWS protect listed birds and eagles from possession and “take,” requiring FWS to regulate the exhibition of protected birds in ways that should exceed the considerations and standards of the Animal Welfare Act.

Comments to the U.S. Fish and Wildlife Service

Submitted July 3, 2023

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In regulating exhibition under the Animal Welfare Act, USDA does not ask “why” an animal is being used for exhibition or consider how exhibition affects the preservation of a species as a whole, and the Animal Welfare Act and its implementing regulations are notoriously filled with exclusions, exemptions, exceptions, and standards that, as they currently exist, require bare-minimum care and are frequently under- or unenforced. USDA licensure is not a substitute for FWS permitting.

Migratory birds and eagles should not be subject to exhibition due to the psychological and physical harm that captivity and exposure to the public cause captive wildlife. Wild birds relegated to captivity frequently suffer severe psychological and physical damage, often engaging in self-harming, stereotypic behavior and succumbing to health conditions not seen in birds living in the wild. Migratory birds, in particular, suffer from the inability to engage in natural migratory behaviors.

If exhibition of protected birds is permitted under the Migratory Bird Treaty Act and Bald & Golden Eagle Protection Act, it should be a carefully crafted exception under those Acts. The Animal Legal Defense Fund supports FWS implementing welfare standards and asserts that FWS should require not only the minimum standards laid out in AWA regulation, but additionally follow specific guidelines outlined in the comments.

The FWS announced its intention to develop a proposed rule for the exhibition of migratory birds and eagles on June 1, 2023.

What action has been taken? The comments were submitted to FWS urging the agency to implement welfare standards and exhibition-specific permitting requirements for migratory birds and eagles without establishing a regulatory authorization or alternative permitting scheme for entities that will be required to obtain a license under the AWA for exhibition.

Why this proposed rule is important: FWS has returned to this important proposed rulemaking considering the exhibition of migratory birds and eagles in 2023 after it was first initiated in 2005. While USDA plays a role setting minimum welfare standards for some migratory birds used in exhibition, FWS has its own inherent Congressional mandate to protect and preserve migratory birds and eagles.